January 01, 2010
5 min read

Medical negligence and breach of duty claims can be separated by the courts

Lessons to be learned from a case in which a surgeon had a resident perform part of surgery.

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Informed consent constitutes a complex inquiry. We continue to examine this doctrine in this column through the review of a case from Maryland that addresses specific physician duties that arise under this doctrine.

In this legal action filed in Baltimore, a patient alleged that her surgeon had failed to perform surgery in the manner they had agreed. Specifically, the patient alleged that while the doctor promised to do the operation himself, he delegated much of that responsibility to his resident.

Dingle v. Belin 1999

The patient, Ms. Belin, consulted a general surgeon, Lenox Dingle, MD, to perform a laparoscopic cholecystectomy. During surgery, Dingle was assisted by a medical student and a resident; the latter had just begun the 4th year of general surgery training. The attending surgeon retracted tissues to expose the surgical field, while the resident dissected and removed the gall bladder.

Lawrence H. Brenner, JD
Lawrence H. Brenner

B. Sonny Bal, MD, JD, MBA
B. Sonny Bal

Although assessed as routine, a problem occurred during surgery when the resident dissected and clipped the common bile duct instead of the cystic duct. This resulted in leakage of bile into the abdominal cavity, which, in turn, led to pain and discomfort and further extensive surgery at another institution.

In the ensuing lawsuit, the patient alleged negligence from lack of informed consent, negligence in the performance of surgery and other claims. A trial-court jury entered a verdict in favor of the defendant resident and attending physician following the presentation of evidence on the negligence counts. A claim related to breach of contract was dismissed. The plaintiff appealed the decision.

The claims for breach of contract and lack of informed consent were based on the assertion that when the patient agreed to the operation, she insisted and the surgeon agreed that while he would be assisted by one or more residents, he would do the actual cutting and removal of the gall bladder. The patient said she knew that the hospital was a teaching institution affiliated with a university, hence the request to the attending surgeon that he perform the surgery and only use a resident if absolutely necessary.

Instead, the patient alleged that without her knowledge or consent, the resident played an active and major role in the surgery. By failing to inform her of the scope of responsibilities that the resident would perform, both the resident and the attending surgeon had breached their duty to secure her informed consent before operating. Such information was material, she said, because had she known of the active role to be played by the resident, she would not have consented to the surgery. In essence, the patient alleged that the informed consent was defectively obtained, and that her damages occurred as a result.

Breach of contract

The plaintiff’s claim relates to an alleged breach of contract. She asserted that the surgeon entered into an oral contract when he agreed that he would identify the anatomy and do the necessary cutting and clipping of structures. In consideration, the patient said she agreed to allow the attending surgeon to do the case. By letting the resident cut and clip her gall bladder, the attending surgeon had breached the contract. The same damages alleged in the counts related to medical negligence were asserted, namely, compensation for injuries, damages and losses, all of which flowed from the breach of contract.

The undisputed facts in this case were: Both the resident and attending surgeon actively participated in the operation; the resident did the dissecting and the attending did the retraction; and that while the patient was aware that one or more residents would be assisting, she had no prior contact with the particular resident who did the cholecystectomy.

The disputed evidence related to exactly what the patient told the surgeon before signing the consent; she worked as a surgical technician and was well aware that residents sometimes performed surgery. She claimed to have told her surgeon that she wanted him to operate, and “if you have a resident in there, I just want that person to maybe suture me up.” She said the surgeon agreed to this. The surgeon had a signed consent, which authorized him “and/or such assistants as may be selected and supervised by him” to perform the operation. The form had a space for special remarks or comments by patient, which was left blank.

Expert testimony for the defense offered that typically, the attending surgeon does the retracting, which requires keen hand-eye coordination to expose the gall bladder safely. Plaintiff’s experts agreed that this arrangement was fairly standard, absent some previous agreement that this would not occur.

History and reasoning

The trial court dismissed the breach of contract complaint on the theory that it was subsumed under the negligence count. An intermediate appellate panel, upon review of the facts, and in reliance on an earlier New Jersey case, found merit in the breach of contract theory and the case went to the Maryland Court of Appeals. The Court of Appeals upheld the breach of contract claim against the surgeon separate from her case claim for medical malpractice.

In its analysis, the court said that in obtaining informed consent, the “risks, benefits, collateral effects, and alternatives normally must be disclosed routinely, but other considerations, at least if raised by the patient, may also need to be discussed and resolved.” It reasoned that the doctor-patient relationship is essentially a contractual one, either expressly or by implication. Legal actions alleging a breach of contract may arise if a doctor acts in contravention of a contractual undertaking; such actions are founded either on a breach of warranty theory, alleging a warranty by the physician of a particular result or on a promise independent of a medical procedure. As an example, the court cited a 1987 Maryland case, Chew v. Meyer, in which a doctor had failed to perform his agreement to complete and submit a patient’s insurance forms.

AMA to the rescue

In its opinion, the court cited the 1982 American Medical Association (AMA) Judicial Council Opinion 8.12, which states a surgeon may use the services of assisting residents or other assisting surgeons to the extent necessary, but “if a resident or other physician is to perform the operation under the guidance of the surgeon, it is necessary to make a full disclosure of this fact to the patient, and this should be evidenced by an appropriate statement contained in the consent.”

A 1994 update to the 1982 AMA opinion reads: “with the consent of the patient, it is not unethical for the operating surgeon to delegate the performance of certain aspects of the operation to the assistant provided this is done under the surgeon’s participatory supervision, i.e., the surgeon must scrub. If a resident or other physician is to perform the operation under non-participatory supervision, it is necessary to make a full disclosure of this fact to the patient, and this should be evidenced by an appropriate statement contained in the consent.”

After examining the judicial landscape pertaining to informed consent, the court concluded that because the doctor-patient relationship is a contractual one, it is permissible for the parties, if they so choose, to define the role the doctor is to play. The most prudent place to do this, it reasoned, is the informed consent document itself, where a special note or comment can attest to any understanding reached between the doctor and the patient. In the context to the case, the court said that a doctor, who partially abandons his or her patient by improperly delegating professional tasks to others that he or she was engaged and agreed to do personally, may be liable for traditional professional negligence, lack of informed consent and breach of contract depending in part on the nature of the consequences that flow from that abandonment.

Although Belin did not recover on her breach of contract claim for unrelated reasons, the court recognized that claim asserted against Dingle was properly submitted to the jury. As with legal cases that reach appeal, the educational value flows from the analysis and discussion of law offered by the appellate court, rather than a determination of who ultimately “won.”

The key is that the court separated a breach of contractual duty claim from a medical negligence claim in a lawsuit in which a patient alleged that her doctor told her that he would do the case, instead of the resident.

For more information:

B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.

Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.